25 Tex. Ct. App. 229 | Tex. App. | 1888
Lead Opinion
This is a conviction for manslaughter, with the punishment fixed at three years confinement in the penitentiary.
Appellant was tried on the thirty-first day of October, 1887.
Now, it can hardly be contended that appellant or his counsel has complied with the provisions of this article. Instead of showing due diligence, laches clearly appears. Failing to use proper diligénce to obtain the approval and signature of the judge to the statement of facts, and it having been filed after adjournment, without an order for that purpose, this court can not lawfully consider this statement of facts; and hence the errors assigned must be considered as if no statement of facts appeared in the record.
Appellant complains that, without fault on his part, he has been deprived of his bills of exceptions. If a party be dissatis-. fied with any ruling or action of the court upon the trial, he may except thereto at the time the same is made, and at his request he shall be given time to embody such exceptions in a written bill. Refusal by the court to grant such time is error, but such error must appear to have prejudiced some right of the party to constitute it reversible error; and for the party to have such error revised .by this court, he must at the the time reserve his bill to the action of the court in refusing him time to prepare
Quite a number of bills of exceptions appear in this record; none, however, were reserved at the time or within term time, all being filed after the court adjourned. We can not, under the circumstances, consider these bills, and the errors assigned must be considered without them.
This record is before us, therefore, without bills of exceptions ■or statement of facts, and we are to look alone to the sufficiency of the indictment and the charge of the court, testing the charge by the allegations of the indictment, and assuming that there was evidence calling for every theory of the case presented by the charge. The indictment is sufficient, and, without a statement of facts, the charge is not obnoxious to any radical error.
The judgment must be affirmed.
Affirmed.
[After the rendition of the foregoing opinion, the counsel for appellant filed an application for a rehearing, based upon grounds which are substantially disclosed in the opinion which follows.— .Reporter.]
Rehearing
Opinion on Motion nob Rehearing.
We were mistaken in the first opinion in this case in stating that there was no order for filing the statement of facts after the adjournment of the court. This mistake was immaterial, because the statement was not filed within ten days.
In the brief, on the motion for rehearing, counsel for appellant insists that there was error in the charge of the court relating to manslaughter, and that as the court charged upon this grade of the offense, it is to be presumed that the evidence required the charge. If courts never charged abstract law, the presumption claimed would be reasonable.
The judge’s notes were tendered to the district attorney by counsel for appellant, as a correct statement of facts, which were refused. It was then the plain duty of counsel for appellant to prepare from the notes or any other source a statement of facts, present the same to the district attorney, and, if he failed to agree, then to present it to the judge, etc.
Again, no move toward obtaining a statement of facts was made until five days after the court adjourned, when counsel for appellant prepared, and sent by mail to the judge at Corsicana, a statement of facts. The statement being filed after the expiration of the ten days allowed, still it will be considered by this court if appellant has shown that he has used due diligence to have it approved and signed by the judge in proper time, and that his failure was the result of causes beyond his control. (Act of March 8, 1887.) This is the rule directly applicable to the state of case presented by this record. The statement was not filed within the ten days.
Has appellant shown such diligence as is required by this act? Let us suppose that counsel for appellant had prepared a statement by the second day after adjournment, and had gone in person to Corsicana to the judge with it, and then insisted upon his approval and signature. It is very probable that these efforts would have,been successful; but if, after these endeavors, he had failed, he would then be in a better position to rely upon the act last cited. The plain, simple truth is that, instead of showing compliance with the statute upon this subject, the affidavits filed by appellant present a clear case of laches.
The motion for rehearing is overruled.
Motion overruled.